FIGHTING COMPANIES
FOR ACCESS TO INFORMATION
Lisa Chamberlain
• How the VEJA v AMSA case in South Africa was a victory for activists •
and the lessons it provides for future freedom of information battles
ABSTRACT
A recent decision of the South African Supreme Court of Appeal (Company Secretary of
Arcelormittal South Africa and Another v Vaal Environmental Justice Alliance) represents an
important vindication of communities’ right of access to information held by the private sector.
Access to information is often a necessary precondition to the realisation of other rights, in this
case environmental. Communities and civil society organisations need to be properly informed
in order to ascertain the nature of environmental harm and how to hold accountable those
responsible for causing it. In this case study Lisa Chamberlain reflects on the decision and draws
out important lessons for communities and the human rights lawyers that support them.
KEYWORDS
Access to information | Environmental rights | Human rights | Corporations | South Africa | Private sector
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1 • Introduction
Consider the following example: large-scale industrial development takes place in a
thriving peri-urban agricultural community. Over time, cattle owned by members of
the community begin to get sick and die. The community notices a grey haze which
has settled over their homes, shops and farms and they begin to suffer from a range of
respiratory ailments. They find it increasingly difficult to grow crops, and the water
in their taps comes out milky and bitter-tasting. People begin to move away from the
once prosperous area. Those that remain suspect that their troubles are as a result of
pollution caused by the factories down the road. If they are right, the companies that
own and run those factories have violated their right to an environment that is not
harmful to their health and wellbeing enshrined in section 24 of the Constitution
of South Africa.1 However, those that remain also know that suspicion alone is not
enough to prove a rights violation. They need information in order to establish this.
This story is not just a hypothetical example. It is the story of the struggles of the Vaal
Environmental Justice Alliance (VEJA) – an alliance of community-based organisations,
affected communities and environmental activists2 - to obtain documents necessary
in their struggles to hold ArcelorMittal (AMSA) accountable for widespread pollution
in an area known as Vanderbijlpark in South Africa.3 It is also a story and a struggle
which has resulted in one of the most significant access to information judgments in
South Africa in the last two decades. This case study will discuss the judgment and
offer some thoughts on lessons that can be learned from it.
2 • The legal context
One of the interesting features of the South African Constitution is that it contains
a right of access to information, not just from the state but from the private sector as
well. Section 32(1) provides that:
Everyone has the right of access to
(a) any information held by the state; and
(b) any information that is held by another person and that is
required for the exercise or protection of any rights.
Notably, there is a difference between the right enforceable against a public body and
that which communities can exercise against the private sector. If the information you
seek is in private hands, then you must establish which other right (other than the
right of access to information) you seek to exercise or protect.4 In the example above,
the community would need to demonstrate that the information they seek is necessary
for the realisation of their section 24 environmental right. The right to information
is thus an “enabling” right in the sense that it enables the realisation of other rights
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in the Bill of Rights. Realising the information right can therefore be understood as a
necessary precondition for other rights to become a lived reality.5 In this vein, access
to information is also a prerequisite for democracy, open debate and accountability.6
In South Africa, the right of access to information is explained in the Promotion of
Access to Information Act 2 of 2000 (PAIA). PAIA is the result of the directive in
section 32(2) of the Constitution that national legislation be enacted to give effect to
the right of access to information. PAIA does not replace the constitutional right, but
because it purports to “give effect” to it, parties must now assert the right via PAIA.7
PAIA sets out the nuts and bolts of the system by providing for the appointment of
information officers to process requests,8 the process for how to submit a request,9
and what legitimate grounds for refusal may exist.10
3 • The story
VEJA has spent more than a decade trying to get hold of the results of an environmental
impact study commissioned by Iscor (AMSA’s predecessor) in 1999. The results of this
study were written up in a document known as the Environmental Master Plan, which
mapped pollution levels caused by AMSA’s activities as well as the company’s plan to
remediate this damage over a 20 year period. VEJA sought access to the Master Plan in
order to establish the extent to which the health problems and the threats to livelihoods
were being caused by AMSA, and to assist them in ensuring that AMSA complied with
the pollution remediation measures that the company itself had outlined.
When other channels proved unsuccessful, in 2011 VEJA eventually resorted to
submitting a request for the Master Plan under the PAIA. The initial PAIA request was
refused by AMSA on the basis that VEJA had not indicated which right they needed the
Master Plan in order to realise. AMSA also indicated that the Master Plan was technically
flawed, out of date and irrelevant.11 In addition to the case being about securing access
to the Master Plan, ultimately the case also became about whether civil society has a
role to play in assisting government in monitoring environmental harm caused by the
private sector and monitoring compliance with obligations to deal with that harm. This
is because, after its other arguments failed, AMSA also took the position that VEJA was
not entitled to the Master Plan because they sought somehow to inappropriately usurp
the compliance monitoring and enforcement role assigned to government.
4 • The judgment
In September 2013 the South Gauteng High Court ordered AMSA to hand over
the requested information.12 AMSA appealed this decision to South Africa’s Supreme
Court of Appeal (SCA). In November 2014, the SCA handed down one of the
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most significant access to information judgments in democratic South Africa.13 The
court made a number of critical findings in relation to AMSA’s lack of good faith
in its engagement with VEJA and the discrepancies between AMSA’s shareholder
communications and its actual conduct.14 Regarding the role of civil society, the
court confirmed that the regulatory framework applicable to the environmental sector
envisages a form of collaborative corporate governance in relation to the environment,
based on the notion that environmental degradation affects us all.15
The court also emphasised the importance of corporate transparency in relation to
environmental issues, stating that “[c]orporations operating within our borders,
whether local or international, must be left in no doubt that, in relation to the
environment…there is no room for secrecy and that constitutional values will be
enforced.”16 The judgment thus sends a clear message to the private sector, including
to multinational corporations operating in South Africa: as envisaged in the South
African Constitution, transparency is the default position.
5 • The lessons
So what lessons can we learn from a case like this, particularly as it has played out
in a jurisdiction which is one of the few in the world to have a right of access to
information held by the private sector.17 I would like to suggest that there are at least
six (but probably more) lessons that we can learn from VEJA’s experience.18
First, the case clearly confirms the enabling nature of the right of access to information.
Without sight of the Master Plan, VEJA was finding it impossible to know the extent
of the pollution that had been caused, what action AMSA had undertaken to perform
to mitigate the effects of that pollution, and therefore how to hold AMSA to account.
The case thus demonstrates how critical it is for communities and civil society
organisations to have the ability to compel companies to provide the documentation
needed to ensure that other rights contained in a bill of rights (in this case the
environmental right) are promoted and protected.
Furthermore, like VEJA, the communities most affected by pollution and other forms
of environmental degradation, often do not have the financial resources necessary to
brief their own army of scientists to conduct impact assessment studies. Therefore if
such studies have already been conducted by experts contracted by either the state
or the corporation involved, then an access to information system is an important
conduit for accessing the knowledge that already exists.19
Secondly, one of the interesting components of the case which has not received much
attention is the fact that licences were granted to AMSA by government regulators on
the basis of what has turned out to be, according to AMSA’s own version of events,
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flawed scientific analysis.20 This must surely bring the credibility of those licences into
question. Unfortunately, none of the government departments involved seem to have
taken up this issue since the judgment. Nevertheless, the lesson here is that access to
information litigation can flush out other important issues which need to be brought
to light, as a kind of by-product.
Thirdly, and less positively, the case illustrates just how long it can take to access the kind
of information necessary to realise environmental (and other) rights. It has taken VEJA
the better part of 15 years to finally get its hands on the Master Plan - and this in a legal
system which has a constitutionally enshrined right of access to information enforceable
against the private sector, buttressed by dedicated legislation. A conducive regulatory
system is therefore not enough. VEJA’s experience signals loud and clear that the existence
of a right of access to information alone does not change corporate behaviour. More is
needed to trigger a shift from a default of secrecy to one of transparency.
The issue of time and delay also has particular implications in the environmental
context. In this case, AMSA tried a whole series of arguments to frustrate the
process.21 If access to information requests take too long however, the harm may
well occur before the process is resolved. In the environmental sector, there is often
a window in which damage to the environment (and thereby to people’s health and
livelihoods) can be prevented. After that window closes, mitigating the extent of the
damage is the best you can do. Timing is thus critical. This is not just a technical
matter of legal process.
Perhaps another time-related lesson is to lodge formal requests for access to
information as soon as possible (if you have a legal system which allows for that).
VEJA tried to access the Master Plan for roughly 10 years before it submitted a
PAIA request. This links to the fourth lesson that can be drawn from this case. Even
in progressive legal systems with advanced constitutional protections, it remains
extremely difficult for communities to realise their rights without access to support
from lawyers. In the Centre for Applied Legal Studies’ (CALS) experience, lawyerly
follow-up to an access to information request significantly increases your chances
that the request gets taken seriously.
Unfortunately, the need for legal assistance plays out not only in the PAIA request
protest, but also should it become necessary to challenge a decision. Although PAIA
provides for an internal appeal against a refusal by a public body to grant access, there
is no equivalent internal appeal mechanism if your request is denied by a private
body. In that instance, your only recourse is to approach the courts, as VEJA did.
While in theory it should be possible to do so without the assistance of a lawyer, in
reality courtrooms and legal processes remain inaccessible and intimidating in South
Africa. For a country that has been committed to access to justice for 21 years, this is
a disquieting reality that is slowly suffocating rights realisation.
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Thankfully, this problem may soon be somewhat mitigated. For several years, civil
society activists in South Africa have been calling for some kind of information
ombud to make accessing information a quicker, cheaper and generally more accessible
process. The Protection of Personal Information Act 4 of 2013 has now introduced an
Information Regulator which will have jurisdiction to hear appeals against unsuccessful
PAIA requests.22 The Regulator is currently in the process of being established with a
public call for nominations having closed in August 2015. Hopefully, the Information
Regulator will operate in such a way that communities are able to challenge attempts
by either government or the private sector to block access to information, without the
need for assistance from a lawyer.
The fifth lesson that I would like to highlight is also about lawyers – but this time
about the forms of collaboration that are possible between human rights lawyers.
VEJA is represented by a non-profit organisation called the Centre for Environmental
Rights (CER).23 However, CER is based in Cape Town and the litigation took place
in Johannesburg. VEJA needed local assistance because, in South Africa, litigants are
required to appoint an address within a few kilometres of the court at which they
will accept service of court papers. This is referred to as acting as a “correspondent
attorney”. In this case CALS acted as correspondent attorneys for VEJA and the CER.24
Taking on the private sector can often feel like a David and Goliath battle with power
skewed in favour of multinational corporations. In CALS’ experience, one of the ways
to deal with this is to team up with other social justice organisations. Importantly,
in social justice work, the possible forms of such collaboration are many and human
rights lawyers and activists should think creatively about the possibilities.25
Lastly, it is important to remain conscious of the fact that accessing the information you
seek is the beginning rather than the end of the process. Subsequent to the judgment,
VEJA received and analysed the Master Plan. It is a voluminous document consisting
of much scientifically technical material. In addition, it was delivered by AMSA in
such a disorganised format that it took several weeks just to organise and index. At the
time of writing, VEJA had sent vast sections of the Master Plan to a team of experts
to assist them and their lawyers to make sense of the material. Only then will they be
able to ascertain the most strategic next step. VEJA has been fortunate to be assisted
by a whole range of experts (both technical and legal). Not all communities suffering
from the effects of pollution caused by large corporations are in that position.
6 • Conclusion
Cases like this one bring refreshing relief to communities and the human rights
lawyers that support them. Such conclusive legal victories are few and far between,
and usually take years to build. So when they do come around, they should be
celebrated. But in addition to celebration, it is important that we reflect on the
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LISA CHAMBERLAIN
strategies and processes involved in order to extract lessons for the next battle, and
to share these with comrades and colleagues involved in similar struggles in other
parts of the world. This case has many lessons to offer: about the limits of progressive
legal systems, timing, collaboration, access to justice and keeping your eye on the
end game. Fundamentally, although the journey to obtaining information may be
an arduous one, a right of access to information, particularly one enforceable against
the private sector, has the potential to play a powerful enabling role in the quest to
realise environmental rights.
NOTES
1 • Section 24 of the Constitution of the Republic
5 • Note that there are other rights which may
of South Africa, 1996 provides that:
also be understood as “enabling” rights such as
“Everyone has the right
the right to protest and the right to participate
(1) to an environment that is not harmful
in decision-making. Likewise the rights which
to their health or well-being; and
access to information “enables” extend far
(2)to have the environment protected,
beyond just the environmental right. However,
for the benefit of present and future
this case study will focus on the way in which the
generations,
right of access to information can facilitate the
through
reasonable
legislative and other measures that
(a)
prevent
pollution
realisation of the environmental right.
and
ecological degradation;
(b)
6 • Jo-Marie Burt and Casey Cagley, “Access to
Information, Access to Justice: The Challenges to
promote conservation; and
Accountability in Peru” SUR 10 (2013).
ecologically
7 • Cora Hoexter, The New Constitutional &
sustainable development and use of
Administrative Law, vol II (Johannesburg: Juta,
natural
2001), 57.
(c)secure
resources
justifiable
while
economic
promoting
and
social
development.”
8 • South Africa, Promotion of Access to Information
Act 2 of 2000 (PAIA), February 2000, sec 17.
2 • For more information on Vaal Environmental
9 • South Africa, PAIA, secs 11, 18, 50-53.
Justice Alliance (VEJA) see https://www.facebook.
10 • Ibid., secs 33-46, 62-70.
com/pages/Vaal-Environmental-Justice-Alliance-
11 • This case is the subject of a documentary
VEJA/322703054542182, accessed September 7,
produced by the Centre for Applied Legal
2015.
Studies,
3 • ArcelorMittal is one of the world’s largest
Commission and One Way Up Productions
steel suppliers.
which is available at https://www.wits.ac.za/cals/
4 • See Jonathan Klaaren and Glenn Penfold
about-us/law-and-film/, accessed April 14, 2016.
“Access to Information,” in Constitutional Law of
12 • South Gauteng High Court, Vaal Environmental
South Africa, ed. Stuart Woolman and Michael
Justice Alliance v Company Secretary of Arcelormittal
Bishop, 2 ed (Claremont: Juta & Co., 2003),
South Africa Ltd and Another, Case n. 39646/12.
chapter 62.7.
13 • Supreme Court of Appeal (SCA), Company
• SUR 23 - v.13 n.23 • 199 - 207 | 2016
the
South
African
Human
Rights
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FIGHTING COMPANIES FOR ACCESS TO INFORMATION
Secretary of Arcelormittal South Africa and Another
19 • Of course the problem of the independence
v Vaal Environmental Justice Alliance, 2015 (1) SA
of experts contracted by a corporation remains,
515 (SCA).
but that is a discussion for another day.
14 • For more information and discussion of this
20 • See AMSA’s admission in para 32.4.1 of
case, see http://cer.org.za, accessed September
its answering affidavit in the High Court case
11, 2015.
referred to in SCA, AMSA v VEJA (n 12 above) at
15 • SCA, AMSA v VEJA (n 13 above) para 71.
para 21 and reference to the water use license
16 • Ibid., para 82.
that was granted on the basis of the Master Plan
17 • The other jurisdictions in which this is the
in VEJA’s answering affidavit at para 37.
case include Antigua and Barbuda, Angola,
21 • These included that CER was not properly
Armenia, Colombia, Czech Republic, Dominican
authorised to represent VEJA, that the Master
Republic,
Iceland,
Plan was flawed and out of date and therefore
Liechtenstein, Panama, Poland, Peru, South
irrelevant, and that VEJA was not entitled to the
Africa, Turkey, Trinidad and Tobago, Slovakia, and
Master Plan because in seeking access to it they
the United Kingdom. See Mazhar Siraj “Exclusion
were trying to usurp a government function.
of Private Sector from Freedom of Information
22 • See South Africa, Protection of Personal
Laws:
Information Act 4 of 2013 (Popi), November 2013,
Estonia,
Implications
Finland,
from
France,
a
Human
Rights
Perspective,” Journal of Alternative Perspectives in
chapter 5.
the Social Sciences 2, no. 1 (2010): 211.
23 • CER is a civil society organisation working in
18 • VEJA is represented by the Centre for
the environmental justice sector to provide legal
Environmental Rights (CER), a civil society
and related support to environmental CSOs and
organisation working in the environmental justice
communities. See further http://cer.org.za/.
sector to provide legal and related support to
24 • CALS is a human rights organisation based
environmental CSOs and communities. See
at Wits University’s Law School which engages in
further http://cer.org.za/. Because the litigation
research, advocacy and impact litigation across
took place in Johannesburg, and CER is based
its five programmes namely Basic Services,
in Cape Town, CER has been supported by the
Business and Human Rights, Environmental
Centre for Applied Legal Studies (CALS) who
Justice, Gender and Rule of Law.
acted as correspondent attorneys in the case.
information on CALS can be found at https://
CALS is a human rights organisation based at
www.wits.ac.za/cals/.
Wits University’s Law School which engages in
25 • For another innovative model pioneered
research, advocacy and impact litigation across
by CALS and CER, see University of the
its five programmes namely Basic Services,
Witwatersrand, Johannesburg, The Mapungubwe
Business and Human Rights, Environmental
story:
Justice, Gender and Rule of Law.
More
https://www.wits.ac.za/cals/our-programmes/
information on CALS can be found at http://www.
environmental-justice/mapungubwe-watch/
wits.ac.za/law/cals/16858/home.html.
accessed April 14, 2016.
206
A
campaign
for
change,
More
available
at
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LISA CHAMBERLAIN
LISA CHAMBERLAIN – South Africa
Lisa Chamberlain (BA LLB: University of the Witwatersrand;
LLM: University of Michigan) is Deputy Director of the Centre for
Applied Legal Studies, University of the Witwatersrand, South
Africa. She is also a senior lecturer and practising attorney. Her
expertise includes environmental justice, mining, administrative
law and access to information.
email: [email protected]
Received in September 2015.
Original in English.
“This journal is published under the Creative Commons Attribution-NonCommercialNoDerivatives 4.0 International License”
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